United States: Decision In Marotto v. Kellogg Co. (S.D.N.Y.)

Key Issue

Whether individual issues predominate in a class composed of all purchasers of a product over a given time period, when only some of the labels used by the product during the time period contained allegedly fraudulent statements.¹

Background

Plaintiff Matthew Marotto, a professional chef, alleged he had been a lifetime consumer of Pringles and was particularly partial to the "Salt & Vinegar" flavor; however, at the same time, he rigorously insisted on purchasing food with "only natural, high-quality ingredients."² In 2018, Marotto alleged he was dismayed to learn that Salt & Vinegar Pringles contained at least two artificial flavorings, despite a label on the can promising "No Artificial Flavors." He brought suit on behalf of a putative class of Pringles purchasers, asserting claims under state consumer protection statutes as well as under several common-law theories.

After discovery, Marotto moved to certify a class in the Southern District of New York of all consumers who had purchased Salt & Vinegar Pringles from April 2012 to the present.

Decision

The district court denied Marotto's motion for class certification. As an initial matter, the court raised questions about Marotto's suitability as a class representative. The court noted that Marotto was "a professional pastry chef" who had received "years of training in molecular gastronomy at an elite culinary school," and that Marotto had testified that consuming food with natural ingredients was so important to him that "price is of no concern" so long as he obtained the right kind of food.³ The court suggested that this combination of professional expertise and culinary "zealous[ness]" likely made him an atypical Pringles purchaser and a poor representative for a class of them.⁴

The court also looked askance at the source of Marotto's knowledge about Pringles. After a lifetime of consuming Pringles, Marotto had learned about the snack's artificial ingredients from his wife, who happened to be a lawyer at one of the firms seeking to represent the putative class. The court noted that this fact raised serious questions about whether the suit was brought for the benefit of the plaintiff or for the benefit of class counsel.

Notwithstanding these issues, the court denied class certification on predominance grounds. First, the court noted that the "No Artificial Flavors" language had only appeared on four of the twenty labels used by Salt & Vinegar Pringles over the course of the class period. Because plaintiffs' claims depended on actually having seen the allegedly fraudulent label, the court would have to exclude those would-be class members who had purchased Pringles on which the offending language did not appear. This exercise would require the court to make individualized determinations about the class membership of thousands of consumers, and meant that individual issues would predominate.

Second, the court pointed out that the calculation of class members' injuries also would be individualized. Consumers who did "not care whether Pringles contain artificial flavors and instead [are] only interested in, e.g., taste, cannot make out a claim for fraud, misrepresentation, or breach of express warranty."⁵ There would be no way to separate these consumers from others who did care whether Pringles contained artificial flavors without conducting highly individualized inquiries into their preferences. Even if it could do so, the court would also need to determine exactly how much value a class member did place on the "No Artificial Flavors" language. The proposed class would thus be overwhelmed by individualized questions.

Thoughts & Takeaways

The opinion highlights some of the difficulties in certifying classes based on arguably amorphous product descriptions like "naturalness." Even when a plaintiff can successfully argue that class members relied on the same representations, it may be difficult to demonstrate that the same class members put value, much less consistent value, on those product features. When plaintiffs bring claims about such misrepresentations, an effective strategy for defeating class certification can be to emphasize the myriad reasons a given consumer might be willing to pay for a particular product.

In addition, although the court ultimately did not base its decision on the typicality of the named plaintiff, the court's skepticism about his typicality is a reminder that a class representative who is too zealous about the product features giving rise to the suit may be deemed atypical of a proposed class of consumers. This is because typical consumers likely balance several factors when deciding what to buy and how much to pay.

Read the decision here.

Footnotes

1 Marotto v. Kellogg Co., — F. Supp. 3d —, No. 18 Civ. 3545 (AKH), 2019 WL 6798290 (S.D.N.Y. Dec. 5, 2019).

2 Id. at *2.

3 Id. at *3.

4 Id.

5 Id. at *4 (citation omitted).

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